UK Guardian, Gary McKinnon – “Cruel and unusual punishment”

From: Andrew Johnson

Date: 2008-11-12 21:27:18

   Latest on Gary McKinon…   Cruel and unusual punishment Extraditing conspiracy-theorist hacker Gary McKinnon, who has been diagnosed with a form of autism, is inhumane Comments (…) Chris Huhne, Wednesday November 12 2008 16.30 GMT Last week, the computer hacker Gary McKinnon was given a Thursday deadline to apply for an oral judicial review, which is the last legal challenge that could stop his extradition to the United States. As he runs out of time and chances, it seems to me and others from across the political spectrum that we should look again at the fundamental case for extradition. There are strong arguments for allowing McKinnon to stand trial in the UK and serve any sentence in this country. The London-based hacker, who is alleged to have broken through Pentagon and Nasa security, has recently been diagnosed with Asperger’s Syndrome, a fact that was not available and hence not taken into account by either the district judge or the High Court when they reached their decisions in favour of his extradition. Sarah Ludford, McKinnon’s constituency MEP, and I have written to the home secretary Jacqui Smith urging her to use her discretion to agree or refuse an extradition request. The news that Gary McKinnon has been diagnosed with Asperger’s Syndrome should surely justify a more humanitarian approach. According to the Asperger’s Syndrome Foundation, the condition is characterised by difficulties with social interaction and communication. A pattern of behaviour includes a lack of empathy, impaired imagination, difficulty in making friends, intense absorption in a special interest and often problems with motor coordination. It can often result in frustration, anger, depression and a lack of self-esteem. In these circumstances, it would be oppressive to extradite him without – at the very least – undertakings from the US authorities as to his treatment.The two-and-a-half year gap between McKinnon’s arrest and the US extradition request also raises serious questions about the plea-bargaining process that took place in the intervening period. McKinnon could have done what the US wanted and pleaded guilty and waived his statutory extradition rights in exchange for a more lenient sentence and repatriation for sentence. The result of this voluntary surrender might have been a three to four-year sentence for non-terrorist offences and speedy repatriation to the UK. However, McKinnon chose to exercise his right to resist extradition. As a result, he is faced with a possible 45-60 year prison sentence without parole for terrorism and no repatriation. He has effectively been blackmailed by the US authorities to plead guilty.Having exercised these rights, the US authorities are now categorising McKinnon’s behaviour as (cyber-)terrorism. There is a real risk of him being detained, both pre-trial and in the event of a conviction, for a long time in a “Supermax” high-security prison. Such detention is hardly suitable for a computer hacker with no previous criminal history and whose potential as a future risk must be seriously questioned. These coercive tactics must surely be contrary to the tenets of any fair legal system, and amount to an abuse of extradition. The High Court rightly described the threat of withholding repatriation if McKinnon refused to surrender as “anathema”, and viewed the way the US authorities conducted plea bargaining with McKinnon in London with “distaste”. This coercive plea bargaining is an abuse of our judicial process. At the very least, Jacqui Smith should seek clarification from the US authorities as to the availability of pretrial bail for McKinnon. If she had real confidence in British justice she would go further and demand that McKinnon stand trial in this country and, if convicted, serve any term of detention in a British prison.This issue, however, is not just about Gary McKinnon. No extraditions of British citizens should be granted until the forum amendments of the Police & Justice Act are enacted, which would allow McKinnon and others to be tried over here. The government could have enacted these provisions in November 2007 but still shows no sign of bringing them into force. Express assurances should also be obtained from requesting countries of immediate post-trial/sentencing repatriation to the UK. This is in accordance with the principles of the European Treaty on transfer of prisoners (to which the US is a signatory). Jacqui Smith must not let our special relationship with the US override the best interests of justice. 

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